Infringement vs. Dilution

U.S. law recognizes that trademark dilution and trademark infringement are two separate and distinct violations. There are variances worldwide, but many countries and the European Union recognize trademark dilution and trademark infringement (though some jurisdictions refer to it by different names). The two offenses might be similar in the minds of many, but what exactly are the differences?

Infringement

Trademark infringement occurs when consumers are likely to be confused by two competing sets of branding that apply to similar products or services. The key here is that the offender is using an aspect of a brand while offering a product or service that is similar to the senior user. Courts in the U.S. use a test called the “likelihood of confusion” analysis when determining if trademark infringement has occurred. This test considers aspects such as the strength of the mark being copied, the similarity of the two products or services, how likely they are to cross paths during commerce, and other factors. 

  • Example: Two year ago, Adidas filed suit against Forever 21. The corporation claimed that Forever 21’s striped design on particular garments could confuse customers who were looking for an article of clothing bearing Adidas’s signature three-striped design. The dispute is still winding its way through the courts, but it is a recent notable example of a prominent brand bringing suit against another prominent brand for infringement. 

Dilution

Trademark dilution, on the other hand, is an offense that weakens an existing trademark or brand. Some cases of trademark infringement can have an effect of weakening the senior brand user, which is why the two offenses are occasionally intertwined in the eyes of a court. Significantly, a trademark must be considered famous to be the victim of dilution. 

Contact OspreyIP

If you’ve spent a significant amount of time and money initiating and nurturing your brand, nothing is more frustrating than external parties working to weaken your intellectual property. Whether you are thinking about registering your intellectual property so that you have recourse against infringement or dilution, or you are currently in a dispute with another company, we want to help you reach a solution that works for you and your property. Please don’t hesitate to call us today at  615-377-0716.

The following two tabs change content below.

OspreyIP, PLLC

Based in Brentwood, Tennessee, OspreyIP is a law firm that operates internationally to help clients file and prosecute patent applications, secure trademark registrations, and take steps to protect their intellectual property.

Latest posts by OspreyIP, PLLC (see all)

%d bloggers like this: